(1) Without limiting the reasons that the Regulator may consider that a person is not a suitable person to carry on or be associated with a tobacco supply business under a licence, a person is not a suitable person to carry on or be associated with a tobacco supply business under a licence if the person has been found guilty of any of the following offences within the preceding 5 years—
(a) a suitability offence;
(b) an indictable offence (other than an indictable offence that is a suitability offence) that in the Regulator's opinion is linked to or tends to be linked to unlawful tobacco activity or organised crime activity.
(2) The Regulator may take into account any spent conviction in relation to an offence referred to in subsection (1) disclosed to the Regulator under the Spent Convictions Act 2021 that is recorded not more than 5 years before the date that the Regulator requested the information from the law enforcement agency.
law enforcement agency has the same meaning as in section 3 of the Spent Convictions Act 2021;
spent conviction has the same meaning as in section 3 of the Spent Convictions Act 2021.
S. 34ZA inserted by No. 51/2024 s. 8.
34ZA Procedure for applications or decisions based on protected information
(1) This section applies if the Chief Commissioner of Police—
(a) under Division 5, objects to or makes representations in relation to an application; or
(b) applies to the Regulator under section 34B(1)(b) for the variation of a licence; or
(c) applies to the Regulator under section 34L(1)(b) for the suspension or cancellation of a licence; or
(d) makes representations to the Regulator under section 34R(3)(b).
(2) If the Chief Commissioner of Police in making the objection, representations or application relies partly or wholly on protected information, the Chief Commissioner of Police may decide—
(a) to include the protected information in the objection, representations or application and specify that the information is protected information; or
(b) not to include the protected information in the objection, representations or application and specify that—
(i) some or all of the decision to make the objection, representations or application is based on protected information; and
(ii) to the extent that the objection, representations or application is based on protected information, reasons will not be given to the Regulator.
(3) If the Regulator makes a decision regarding an application referred to in subsection (1) based on protected information received from the Chief Commissioner of Police and provides reasons for that decision to the applicant (including a statement of reasons under Division 7), the Regulator—
(a) must not disclose any protected information received from the Chief Commissioner of Police in relation to the application; and
(b) must specify that the Regulator's decision is based on advice from the Chief Commissioner of Police.
(4) Subsection (5) applies if the Chief Commissioner of Police—
(a) objects to or makes representations under Division 5 in relation to an application, or makes an application specified in subsection (1)(b) or (c) to the Regulator; and
(b) the objection, representations or application is or are based on or contains protected information.
(5) In the circumstances set out in subsection (4)—
(a) any requirement of this Act requiring the Regulator to provide a copy of the application, objection or representations to the licensee does not apply (whether or not the Chief Commissioner of Police has disclosed the protected information to the Regulator); and
(b) the Regulator must notify the licensee that the Chief Commissioner of Police has made an application, objection or representations (as the case may be) and that the application, objection or representations will not be provided to the licensee; and
(c) if the licensee is entitled to object, make submissions or representations in relation to a matter to which subsection (4) applies, the Regulator may invite the licensee to make submissions or representations in relation to the suitability of the licensee or any associate of the licensee to carry on or be associated with a tobacco supply business under the licence.
S. 34ZB inserted by No. 51/2024 s. 8.
34ZB Regulator may permit amendments and disregard errors
In deciding whether to grant or refuse an application referred to in section 34W(1), the Regulator may—
(a) permit the applicant to amend the application, or any information given to the Regulator in connection with the application; and
(b) disregard any omission, error, defect or insufficiency in—
(i) the application; or
(ii) any information given to the Regulator in connection with the application.
S. 34ZC inserted by No. 51/2024 s. 8.
34ZC Form, categories and duration of licence
(1) A licence is to be in the form approved by the Regulator.
(2) On issuing a licence under section 34W(4), the Regulator must specify—
(a) the date on which the licence takes effect; and
(b) the category or categories of licence issued to the licensee; and
(c) any conditions imposed on the licence under section 34ZD.
(3) The categories of licence are the categories prescribed by the regulations.
(4) Subject to this Act, a licence takes effect on the date specified by the Regulator, and continues in force until the end of the financial year in which it is issued.
S. 34ZD inserted by No. 51/2024 s. 8.
34ZD Licence conditions
(1) On granting an application specified in subsection (2), the Regulator may impose on the licence—
(a) general conditions that apply to the category of licence issued to or held by the licensee; and
(b) specific conditions applying to the licence.
(2) Subsection (1) applies to the following applications—
(b) a transfer application;
(c) a relocation application;
(d) a variation application.
(3) Without limiting subsection (1), the Regulator may impose a condition requiring the licensee to report to the Regulator any activity conducted under the licence.
(4) A licence is also subject to any conditions prescribed by the regulations.
S. 34ZE inserted by No. 51/2024 s. 8.
34ZE Several liability
(1) If a licence is issued or transferred to 2 or more persons, each of those persons is severally liable under this Act as licensee.
(2) If a licence is issued or transferred to a body corporate, the body corporate and each of the directors of the body corporate is severally liable under this Act as licensee.
(3) If a licence is issued or transferred to a person on behalf of a partnership, each partner is severally liable under this Act as licensee.
S. 34ZF inserted by No. 51/2024 s. 8.
34ZF Regulator to endorse changes to licences
The Regulator must endorse changes to a licence as a result of—
(a) a variation application; or
(b) varying a licence under section 34C, 34D, 34E or 34F; or
(c) a transfer application; or
(d) a relocation application.
Division 7—Statements of reasons
S. 34ZG inserted by No. 51/2024 s. 8.
34ZG Request for statement of reasons for decision
(1) A person whose interests are affected by a reviewable decision may request the Regulator to give the person a written statement of reasons for the decision.
(2) A request under subsection (1) must be made in writing within 28 days after the day on which the person receives notice of the decision.
S. 34ZH inserted by No. 51/2024 s. 8.
34ZH Chief Commissioner of Police may request statement of reasons
(1) The Chief Commissioner of Police may request the Regulator to give the Chief Commissioner of Police a written statement of reasons in relation to a decision of the Regulator—
(a) to grant an application for a licence to or in relation to which the Chief Commissioner of Police objected or made representations under Division 5; or
(b) to refuse to grant an application by the Chief Commissioner of Police for the variation, suspension or cancellation of a licence.
(2) The Regulator must give the Chief Commissioner of Police the statement of reasons within 28 days after receiving a request under subsection (1).
(3) The Regulator is not required to give a statement of reasons requested under subsection (1) if the Regulator has already provided the Chief Commissioner of Police a written statement containing the matters set out in section 34ZI.
S. 34ZI inserted by No. 51/2024 s. 8.
34ZI Provision of statement of reasons
(1) The Regulator must provide a statement of reasons within 28 days of receiving a request under section 34ZG or 34ZH.
(2) Subject to subsection (3), the statement of reasons for a decision of the Regulator in relation to an application referred to in sections 34ZG and 34ZH must include—
(a) the reasons for the Regulator's decision; and
(b) the findings on material questions of fact that led to the Regulator's decision, referring to the evidence or other information or material on which the Regulator's findings were based.
(3) If the Regulator's decision is based wholly or partly on protected information received from the Chief Commissioner of Police, the Regulator must—
(a) not disclose the protected information (if the Chief Commissioner has disclosed the protected information to the Regulator); and
(b) state only that the Regulator's decision is based on advice from the Chief Commissioner of Police.
(4) The Regulator may exclude any personal information in a statement of reasons if the Regulator considers it appropriate in the circumstances.
Division 8—Internal reviews
S. 34ZJ inserted by No. 51/2024 s. 8.
34ZJ Applications for internal review
(1) Except as provided in subsection (5), a person whose interests are affected by a reviewable decision may apply to the Regulator for a review of the decision in accordance with this section.
(2) An application under subsection (1) must—
(a) be made within the later of—
(i) 28 days after the day on which the person received notice of the reviewable decision from the Regulator; or
(ii) 28 days after the person received a statement of reasons for the decision; or
(iii) the longer period that the Regulator allows; and
(b) be made in writing in the form approved by the Regulator.
(3) The Regulator must not allow a longer period under subsection 2(a)(iii) unless the Regulator is satisfied that exceptional circumstances exist to justify the longer period.
(4) An applicant for internal review may provide to the Regulator any other information that the applicant considers relevant.
(5) Subsection (1) does not apply if the Regulator has informed the person under section 34ZA(3)(b) that the Regulator's decision is based on advice from the Chief Commissioner of Police.
Division 9 applies to provide a right of review to VCAT for decisions based on advice from the Chief Commissioner of Police.
S. 34ZK inserted by No. 51/2024 s. 8.
34ZK Decisions on internal review
(1) The Regulator must review the reviewable decision specified in an application received under section 34ZJ and make a fresh decision within 28 days of receiving the application—
(a) that affirms or varies the reviewable decision; or
(b) that sets aside the reviewable decision and substitutes another decision that the Regulator considers appropriate.
(2) As soon as practicable after making a decision under subsection (1), the Regulator must give written notice of the decision, and the reasons for the decision, to—
(b) the Chief Commissioner of Police, if—
(i) an objection or representation has been made under Division 5 in relation to the reviewable decision; and
(ii) the reviewable decision was overturned or modified.
(3) If the Regulator decides on review to revoke a reviewable decision, the Regulator may in addition make any other decision that the Regulator considers appropriate that is available to the Regulator under the provision of this Act under which the reviewable decision was made.
(4) If the Regulator does not make a decision within 28 days after receiving an application under subsection (1), the Regulator is taken to have affirmed the reviewable decision.
Division 9—Review by VCAT
S. 34ZL inserted by No. 51/2024 s. 8.
34ZL Application to VCAT for review of decision on internal review
(1) A person whose interests are affected by a decision of the Regulator on internal review under section 34ZK may apply to VCAT for review of the Regulator's decision on internal review in accordance with this section.
(2) An application under subsection (1) must be made within 28 days after the latest of—
(a) the day on which the Regulator gave the person notice of the Regulator's decision on internal review under section 34ZK(2); or
(b) if the Regulator does not give notice of a decision on internal review, the day the Regulator is taken to have affirmed the reviewable decision under section 34ZK(4); or
(c) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision on internal review, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
S. 34ZM inserted by No. 51/2024 s. 8.
34ZM Application to VCAT for review of decision based on advice from the Chief Commissioner of Police
(1) A person whose interests are affected by a decision that the Regulator has specified is based on advice from the Chief Commissioner of Police may apply to VCAT for review of the Regulator's decision in accordance with this section.
(2) An application under subsection (1) must be made within 28 days after the Regulator informed the person under section 34ZA(3)(b) that the decision was based on advice from the Chief Commissioner of Police.
S. 34ZN inserted by No. 51/2024 s. 8.
34ZN VCAT to inquire on grounds for decision
(1) On receipt of an application under section 34ZM, VCAT must inquire of the Regulator whether the grounds for the decision were based on any protected information.
(2) The Regulator must give a written response to a request under subsection (1).
(3) If the Regulator advises VCAT that the grounds for the decision were based on protected information—
(a) the hearing of the application must be conducted in private in accordance with section 34ZP; and
(b) VCAT must appoint a person as special counsel to represent the interests of the applicant in accordance with section 34ZO.
S. 34ZO inserted by No. 51/2024 s. 8.
34ZO Appointment of special counsel—protected information
(1) If the Regulator informs VCAT under section 34ZN(2) that the decision was based on protected information, VCAT must appoint a special counsel to represent the interests of the applicant.
(2) A special counsel must be a barrister within the meaning of the Legal Profession Uniform Law (Victoria) who, in the opinion of VCAT, has the appropriate skills and ability to represent the interests of the applicant at the hearing.
(3) For the purposes of subsection (2), a special counsel may only represent the interests of the applicant to the extent that those interests relate to the protected information on which the decision is based.
(4) At any time before the special counsel attends the hearing or obtains any confidential affidavit in relation to the application for review, for the purpose of obtaining information or instructions from the applicant in relation to the proceeding, the special counsel may communicate with—
(a) the applicant; or
(b) any representative of the applicant.
(5) Subject to section 34ZQ(5), at any time after the special counsel commences to attend the hearing or obtains any confidential affidavit in relation to the application for review, the special counsel must not—
(a) take instructions from the applicant or from any representative of the applicant; and
(b) communicate any other information in relation to the hearing to the applicant or a representative of the applicant without leave of VCAT, except to communicate any order made by VCAT at or in relation to the hearing.
(6) A special counsel may be required to sign a confidentiality undertaking to VCAT.
S. 34ZP inserted by No. 51/2024 s. 8.
34ZP Procedure for hearing—protected information
(1) If the Regulator informs VCAT under section 34ZN(2) that the reviewable decision was based on protected information—
(a) the Chief Commissioner of Police of Police must be joined as a party to the proceeding; and
(b) at the hearing of the application for review of the reviewable decision, VCAT must first determine whether or not the reviewable decision was based on protected information.
(2) For the purposes of subsection (1)(b), VCAT must hold the hearing in private.
(3) The following persons are entitled to be present at the hearing under subsection (2)—
(a) if the Chief Commissioner of Police disclosed the protected information to the Regulator under section 34ZA(2)(a), the Regulator, the Chief Commissioner of Police and the special counsel;
(b) if the Chief Commissioner of Police did not disclose the protected information to the Regulator under section 34ZA(2)(b), the Chief Commissioner of Police and the special counsel only.
(4) Each person that is entitled to be present at the hearing under subsection (3) has a right to make submissions as to whether evidence supporting the grounds for the decision amounts to protected information.
(5) After hearing the submissions under subsection (4), VCAT must decide whether or not any of the evidence adduced amounts to protected information.
(6) If VCAT decides that none of the evidence adduced under subsection (4) amounts to protected information VCAT must permit the following persons to attend the hearing of the application—
(a) the Regulator (if the Regulator was excluded from attending under subsection (3)(b);
(b) the applicant.
S. 34ZQ inserted by No. 51/2024 s. 8.
34ZQ Decision of VCAT where protected information exists
(1) Without limiting any other power of VCAT conferred by or under this or any other Act, if VCAT decides that any of the evidence adduced under section 34ZP is protected information, only the following persons are entitled to be present at the hearing of the application to the extent that it relates to that protected information—
(a) the Chief Commissioner of Police;
(b) the special counsel;
(c) if the Chief Commissioner of Police disclosed the protected information to the Regulator under section 34ZA(2), the Regulator.
(2) Each person that is entitled to be present at the hearing of the proceeding has a right to make submissions as to—
(a) the weight that should be given to the evidence supporting the grounds for the decision that amounts to protected information and any other evidence adduced; and
(b) if relevant, the character of the applicant, being evidence indicating whether the applicant or an associate of the applicant is a suitable person to carry on or be associated with a tobacco supply business under a licence; and
(c) whether, in all the circumstances, the application or decision that is the subject of the reviewable decision should be granted or affirmed.
(3) In determining a proceeding that involves protected information, VCAT must decide—
(a) what weight to give the protected information and any other evidence adduced; and
(b) whether, in all the circumstances, the application or decision that is the subject of the reviewable decision should be granted or affirmed.
(4) If VCAT decides under section 34ZP that any evidence adduced is protected information, VCAT must take all steps and precautions to prevent release of that information.
(5) If a special counsel wishes to seek further instructions from the applicant in relation to the protected information, the special counsel must first submit written questions to VCAT for approval.
(6) Before approving the written questions under subsection (5), VCAT must—
(a) allow the Chief Commissioner of Police to make submissions on the content of the questions; and
(b) hear any submissions so made.
(7) Despite section 117 of the Victorian Civil and Administrative Tribunal Act 1998, any order made by VCAT in relation to a decision under this section must only state—
(a) whether the decision of the Regulator is upheld or overturned; and
(b) if the applicant's licence is not issued, renewed or reinstated (as the case requires), that the applicant or each relevant person in relation to the application has failed to meet the suitability requirements.
(8) VCAT may publish reasons for its decision only to the extent that those reasons do not relate to protected information.
S. 34ZR inserted by No. 51/2024 s. 8.
34ZR Chief Commissioner of Police may request Regulator reconsider decision without protected information
(1) At any time before a final determination has been made by VCAT in a proceeding under this Division that involves protected information, the Chief Commissioner of Police may request the Regulator to reconsider the Regulator's decision without relying on the protected information.
(2) If the Chief Commissioner of Police makes a request under subsection (1)—
(a) the Chief Commissioner of Police must advise VCAT that the request has been made; and
(b) VCAT—
(i) must remit the matter for re‑consideration by the Regulator in accordance with the request; and
(ii) may make any other orders that VCAT thinks fit; and
(c) the Regulator must reconsider the decision as if the protected information had not been provided.
Division 10—Licence renewals
S. 34ZS inserted by No. 51/2024 s. 8.
34ZS Application for renewal of licence
(1) A licensee, including a licensee whose licence is currently suspended, may apply to the Regulator for renewal of the licence for a further financial year in accordance with subsection (2).
(2) A renewal application must—
(c) be accompanied by the prescribed fee.
(3) The Regulator may request the applicant to provide any other document or information that the Regulator reasonably requires to assess a renewal application, and may for the purposes of assessing the renewal application, assess the licensee's suitability to continue to hold a licence.
(4) For the purposes of subsection (3), and without limiting the Regulator's powers under that subsection, the Regulator may request the licensee to—
(a) provide an updated criminal history check in respect of the licensee or any associate of the licensee; or
(b) verify any information included with or accompanying the application, including by way of statutory declaration.
(5) If the applicant does not comply with a request under subsection (3)—
(6) If the Regulator has not made a decision on a renewal application under section 34W before the expiry of the licence, the licence remains in force until the Regulator makes the decision.
(7) The making of a renewal application by a licensee whose licence is currently suspended does not affect the suspension of the licence.
Division 11—Disqualification
S. 34ZT inserted by No. 51/2024 s. 8.
34ZT Procedure—proposal to disqualify person from holding licence
(1) If the Regulator has given a licensee a show cause notice proposing to cancel the licensee's licence, the Regulator may also give any of the following persons a notice proposing to disqualify the person from holding a licence for a period of up to 5 years—
(a) if the licensee is a natural person, the licensee;
(b) if the licensee is a body corporate—
(i) the body corporate; or
(ii) any director of the body corporate;
(c) if the licence is held on behalf of a partnership, any partner in the partnership.
(2) A notice under subsection (1) must specify the following—
(a) that the Regulator proposes to disqualify the person from holding a licence for a period specified in the notice that does not exceed 5 years from the date of the notice;
(b) the grounds for the proposed disqualification;
(c) the facts and circumstances forming the basis for the proposed disqualification;
(d) that the person may, within the period specified in the notice, show cause why the proposed disqualification should not be taken.
(3) The period specified in subsection (2)(d) must not be less than 28 days after the day that the notice is given to the person.
(4) The person may make written representations to the Regulator during the period specified in the notice, showing cause why the person should not be disqualified from holding a licence.
(5) A notice under subsection (1) may be given at the same time as a show cause notice.
S. 34ZU inserted by No. 51/2024 s. 8.
34ZU Decision on disqualification and notice
(1) Subject to subsection (2), if, after considering any representations made under section 34ZT(4), the Regulator is satisfied that disqualification of the person is warranted, the Regulator may disqualify the person from holding a licence for a period of up to 5 years from the date of giving notice of disqualification under subsection (3).
(2) The Regulator may disqualify a person under subsection (1) only if under section 34Q(1) the Regulator cancels the licence referred to in the show cause notice.
(3) The Regulator must give written notice of the Regulator's decision to disqualify a person from holding a licence to—
(a) the person; and
(b) the Chief Commissioner of Police.
(4) A notice under subsection (3) must specify—
(a) that the Regulator has decided to disqualify the person from holding a licence under this section; and
(b) the reasons for the Regulator's decision; and
(c) the period of disqualification; and
(d) the way in which the person may seek a review of the Regulator's decision.
(5) If, after considering any representations made under section 34ZT(4), the Regulator is not satisfied that disqualification is warranted, the Regulator must give written notice to the person stating that the person will not be disqualified from holding a licence as soon as practicable after making that decision.
Division 12—General
S. 34ZV inserted by No. 51/2024 s. 8.
34ZV Register of Licensed Tobacco Suppliers
(1) The Regulator must keep a Register of Licensed Tobacco Suppliers.
(2) The Regulator must cause the following information to be included in the Register in relation to each licence—
(a) the business name under which the licensee sells tobacco products;
(b) the address of the licensed tobacco premises;
(c) the licensee's licence number;
(d) any prescribed information.
(3) The Regulator must cause the Register to be published on the Regulator's website.
S. 34ZW inserted by No. 51/2024 s. 8.
34ZW Requirement to notify Regulator of change in application information
(1) A person (primary person) must notify the Regulator, in the form approved by the Regulator, within 14 days after any change in any information provided by the primary person to the Regulator under this Act occurs, including information accompanying any of the following applications—
(b) a variation application;
(c) a relocation application;
(d) a transfer application;
(e) an application under section 34L(1)(a) to suspend or cancel a licence;
(f) a renewal application.
(2) For the purposes of subsection (1), a change of information includes where—
(a) a person who was an associate of the primary person ceases to be an associate of the primary person; or
(b) a person who was not an associate of the primary person becomes an associate of the primary person.
S. 34ZX inserted by No. 51/2024 s. 8, repealed by No. 51/2024 s. 36.
S. 34ZY inserted by No. 51/2024 s. 8.
34ZY Court may suspend or cancel licence or disqualify person
If a court finds a licensee guilty of a suitability offence the court may, in addition to imposing any other penalty in relation to the offence—
(a) suspend the licensee's licence for a period specified by the court; or
(b) cancel the licensee's licence; or
(c) cancel the licensee's licence and disqualify the licensee from holding a licence for the period not exceeding 5 years specified by the court.
S. 34ZZ inserted by No. 51/2024 s. 8.
34ZZ Regulator may review licences
(1) The Regulator may at any time conduct a review of a licence.
(2) Without limiting the scope of a review under subsection (1), the Regulator may review any or all of the following—
(a) the suitability of the licensee or any associate of the licensee to carry on or be associated with the tobacco supply business under the licence;
(b) the licensee's compliance with this Act and the regulations.
(3) For the purposes of a review, the Regulator may conduct any inquiries the Regulator thinks fit, including, without limitation—
(a) inquiries with the Chief Commissioner of Police or government agencies in Victoria or in other Australian jurisdictions in relation to the criminal history of—
(i) the licensee; or
(ii) any associate of the licensee; and
(b) inquiries with the Council in whose municipal district the licensed tobacco premises is situated.
(4) For the purposes of a review, the Regulator may request the licensee to provide, within the time specified in the request, any documents or information that the Regulator considers appropriate, including without limitation—
(a) a criminal history check of—
(i) the licensee; and
(ii) any associate of the licensee; and
(b) any other information that the Regulator reasonably requires to verify the licensee's compliance with this Act or the regulations.
(5) The Regulator may request the licensee under subsection (4) to verify any information provided to the Regulator in accordance with that subsection by way of statutory declaration.
(6) The licensee must not, without reasonable excuse, fail to comply with a request of the Regulator under subsection (4).
S. 34ZZA inserted by No. 51/2024 s. 8.
34ZZA Licence ceases to have effect in certain circumstances
A licence ceases to have effect—
(a) in the case of a licensee who is a natural person, if the licensee—
(i) becomes an insolvent under administration; or
(ii) becomes a represented person within the meaning of the Guardianship and Administration Act 2019; or
(b) in the case of a licensee that is a body corporate, if the licensee—
(i) becomes an externally administered body corporate within the meaning of the Corporations Act; or
(ii) is wound up; or
(iii) is deregistered (whether under the Corporations Act or otherwise).
S. 34ZZB inserted by No. 51/2024 s. 8.
34ZZB Licence not personal property
For the purposes of section 8(1)(k) of the Personal Property Securities Act 2009 of the Commonwealth, a licence is declared not to be personal property.
S. 34ZZC inserted by No. 51/2024 s. 8.
34ZZC Regulator may issue copy of licence
(1) A licensee may apply to the Regulator for a copy of the licensee's licence, or a specified part of that licence.
(2) An application to the Regulator under subsection (1) must be accompanied by the prescribed fee.
(3) The Regulator must issue to the licensee a copy of the licence (or specified part of the licensee's licence) with the word "copy" marked on it as soon as practicable after receiving an application under subsection (1).
A copy of the licence includes a digital copy of the licence.
Pt 3AAB (Headings and ss 35–35G) inserted by No. 51/2024 s. 12.